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California Environmental Protection Association v. Sonoma Soil Builders, LLC

United States District Court, N.D. California

April 20, 2017

CALIFORNIA ENVIRONMENTAL PROTECTION ASSOCIATION, Plaintiff,
v.
SONOMA SOIL BUILDERS, LLC, Defendant.

          ORDER GRANTING MOTION TO WITHDRAW AS COUNSEL RE DKT., 34

          KANDIS A. WESTMORE UNITED STATES MAGISTRATE JUDGE.

         Stephan C. Volker moves to withdraw his firm as Plaintiff California Environmental Protection Association's counsel. (Mot. to Withdraw, Dkt. No. 34.) Plaintiff did not file an opposition to Attorney Volker's motion to withdraw. The Court held a hearing on the motion on April 20, 2017; [Attorney Volker appeared at the hearing, but Plaintiff did not.]

         Having reviewed the parties' filings, the Court GRANTS Attorney Volker's motion to withdraw as counsel.

         I. BACKGROUND

         Plaintiff filed the instant case on October 23, 2015, alleging violations under the Federal Pollution Control Act, also known as the Clean Water Act ("CWA"). (Compl. ¶ 1, Dkt. No. 1.) On February 2, 2016, Attorney Volker was substituted in as attorney. (Dkt. No. 10.) On September 23, 2016, the Court granted a stipulation between the parties which continued case management and discovery dates. (Dkt. No. 30.) The parties stipulated to the following deadlines: service of initial disclosures by February 15, 2017; service of discovery requests by March 20, 2017; service of deposition notices by April 18, 2017; commencement of depositions after July 17, 2017; service of subpoenas on third parties by August 21, 2017; service of expert reports by October 23, 2017; service of expert rebuttal reports by November 27, 2017; commencement of expert depositions by December 11, 2017 (Plaintiff) and January 22, 2018 (Defendants); and completion of all discovery by February 19, 2018. (Id. at 2-3.)

         On January 17, 2017, Plaintiff moved for an extension of all deadlines by 90 days, in order to allow the parties to complete settlement negotiations. (Dkt. No. 32.) The Court granted Plaintiff's motion. (Dkt. No. 33.)

         On March 9, 2017, Plaintiff's counsel moved to withdraw as attorney. In his declaration, Attorney Volker explained that Plaintiff had failed to reimburse his firm for case costs within 30 days of counsel's presentation of such costs to Plaintiff. (Volker Decl. ¶ 3; Dkt. No. 34.) Attorney Volker also stated there was a breakdown in communications. (Volker Decl. ¶ 6.) Specifically, Attorney Volker would contact Plaintiff's president, Mr. Gerard Duenas, seeking contact information on Plaintiff's Board of Directors and members allegedly harmed by Defendants' violations, as well as identification of evidence "essential to compliance with the requirements of Rule 26(a)(1) of the Federal Rules of Civil Procedure regarding 'Initial Disclosure' of such information." (Volker Decl. ¶ 4.) Despite repeated attempts for such information, Attorney Volker was "unable to secure prompt, accurate and complete information from Mr. Duenas." In the motion, Attorney Volker also notes that "relatedly, ethical considerations require withdrawal of counsel." (Mot. to Withdraw at 3.)

         On December 1, 2016, Attorney Volker informed Mr. Duenas by phone that the failure to communicate "rendered it unreasonably difficult" to continue representing Plaintiff. (Volker Decl. ¶ 6.) Attorney Volker stated he would request to be withdrawn as counsel unless Plaintiff substituted other counsel to represent it. On December 29, 2016, Attorney Volker reminded Mr. Duenas of his intent to withdraw by mail and e-mail. Attorney Volker also explained to Mr. Duenas that because Plaintiff was a corporation, "it could not appear in propria persona and would need to secure substitute counsel." Attorney Volker's letter also gave "detailed reasons compelling our withdrawal." (Id.)

         On January 17, 2017, Mr. Duenas responded to Attorney Volker by letter, declining to assent to Attorney Volker's withdrawal as counsel. (Volker Decl. ¶ 7.) Attorney Volker also asserts that Plaintiff failed to find and refused to substitute new counsel, "and that the communication failure necessitating this motion to withdraw have not been rectified." (Id.)

         On March 9, 2017, Attorney Volker moved to withdraw as counsel. On March 10, 2017, Attorney Volker filed a proof of service, stating that he arranged for service of the motion to withdraw of counsel to Plaintiff by e-mail and mail. (Dkt. No. 35.) [As of the date of this order, no opposition has been filed by the parties.]

         II. LEGAL STANDARD

         Under Civil Local Rule 11-5(a), "[c]ounsel may not withdraw from an action until relieved by order of Court after written notice has been given reasonably in advance to the client and to all other parties who have appeared in the case." The rule further provides that:

When withdrawal by an attorney from an action is not accompanied by simultaneous appearance of substitute counsel or agreement of the party to appear pro se, leave to withdraw may be subject to the condition that papers may continue to be served on counsel for forwarding purposes, unless and until the client appears by other counsel or pro se. When this condition is imposed, counsel must notify the party of this condition. Any filed consent by ...

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